The Treaty concluded in 1979, can be said to be the most important source of law, simply because it is the only way states may create binding legal obligation in a deliberate and conscious manner. As long as it complies with the Vienna Convention on the Law of Treaties 1969, those states that have given consent to be bound by one of the methods recognised as effective in international law (signature, ratification, accession) are legally bound by the terms of the treaty, subject to any reservation given.
Customary law seems to have the largest role to play in respect to this case, as Utopia has not ratified the treaty, its refusal to allow importation of these chemicals can only be said to illegal if it is in breach of customary law that Utopia has become bound by.
The final two sources of law that could play a role are the ICJ’s ruling and the consistent academic opinion that trade in these chemicals was not permitted in international law.
With regard to the academic opinion it is clear from Article 38 Statute of The International Court of Justice that academic opinions are to be considered as a source of law, only to determine the current position with regard to customary law, its significance therefore can be argued if it complement exiting customary law or state practice.
The ICJ’s ruling can also be considered as a source of law, however according Art 59 of the ICJ Statue – the decision of the court has no binding force except between the parties and in respect of that particular case. It is not clear to which parties this decision has been addressed, if it has been addressed to Utopia they are legally obliged to follow the ruling. If however the ruling was not addressed to Utopia it may only be applicable in respect that a decision of the Court may have a profound impact on customary law, because the decision may have a decisive effect on subsequent state practice, if the states order their affairs to meet the standard identified by the court, new customary law may come into existence.
Now we have identified all the possible sources of law which are applicable, the interpretation and significance of each is essential when considering if Utopia is in breach of international law.
Firstly it need be establish that Utopia has not ratified the treaty, even though it was based on the 1975 resolution that Utopia voted for. Therefore the basic rule that you can be bound by a treaty to which you have not consented applies. However treaties may codify or develop customary law, which treaty appears to have done as 1975 resolution received huge support by a significant number of states including Utopia. If however if it is deemed that it didn’t codify existing customary law, it may be argued that Utopia along with the other South American States may be bound by the new customary law that has emerged after the treaty by the states practicing the rules and procedures stated in the treaty. Even then, however a state can not be bound by a treaty to which it is not party, even if its obligations under customary law are identical to those contained in the treaty.
When a treaty codifies existing customary law, the substance of the obligations specified in the treaty may be binding on all because even though those states who are not party to the treaty, cannot be said to be bound by it, the treaty codifies existing customary law or because state practice after the treaty has come into force generates new customary law, these states are bound by the same obligations as expressed in the treaty in customary law.
If state practice develops along the lies of the treaty code, the result could be new rules of custom, similar to those in the treaty, come into being. If this happens non-parties will be bound. If the treaty is intended to develop the law, non-parties may come under similar obligations to those found in the treaty if its effect is to give rise to new customary law.
As customary international law is said to be that law which has evolved from the practise or customs of states, it seems that by Utopia following the rules of the treaty that it has become bound by the new customary law.
However it is necessary to argue whether new or existing customary law is applicable with regard to Utopia’s situation, if it is clearly Utopia is in breach of international law. Nevertheless it could be argued by Utopia that certain elements necessary in order to establish customary law are not present, and therefore no breach has occurred.
In order for customary law to be establish 5 elements must be present.
1. State practice – actual activity (acts and omission), statements made in respect of concrete situations or disputes, statements of legal principles made in the abstract, such as those preceding the adoption of a resolution in the General Assembly. It seems impossible to argue that Utopia has not conducted State practice consistent with the treaty and resolution.
2. Consistency of practice – constant and uniform, it seems that Utopia along with the other South American States and all those who voted in favour of the 1975 UN resolution and conducted it States activity in accordance for number of years consistently, and therefore has satisfied this element.
3. Generality of practice – is satisfied as most South American States have adopted the same line of action with regard to importation of these chemicals.
4. duration of practise – the time needed for state practise to mature into customary law is not determined but it is clear that the States have conducted their activities in this way since the 1979 treaty and even perhaps since and before the 1975 resolution and would suggest that this element is also satisfied
5. Opinio Juris – in order that practice constitutes law, states must recognise that is binding upon them as law. State practice must be accompanied by the belief that the practice is obligatory, rather than merely convenient or habitual. This is an essential element of customary law (Lotus case, North Sea Continental Shelf Case)
This is the only possible argument that Utopia could argue that customary law does not exist, arguing that its activity was merely convenient for economic purposes rather than obligatory in terms of the law. However this argument has been weakened by the
Court, which held that due to the fact that opinion juris is difficult to prove, that it could be presumed from consistent practice, unless a contrary intention was apparent.
Only when a state from the outset objects to a particular practice carried on by other states or adopts contrary practice, it seems it may not be bound by the evolving customary law. They are known as a Persistent objector – initial and sustained objection will prevent a state from being bound. However Utopia never previously objected and it is clear that subsequent objection to an established rule of customary law cannot prevent that rule from binding a state.
Therefore it seems that customary law has evolved either in line with the treaty provision or even prior to the formation of the treaty of which Utopia did not object and in fact conducted it’s activities in a consistent manner, and therefore any argument that it was not bound by the law or that it did not exist is terribly weak.
It seems now that Utopia only other line of action in defence of the breach is that importation of these chemicals is illegal. It seems that if the ICJ ruling is addressed to them, their action and statement would be entirely correct. However the ICJ ruling is only binding on those to whom it is addressed. The second argument is with regard to the consistent academic opinion that the importation was illegal, this however is only relevant if is as influence or described the existence of customary law, which clearly it has not.
The only possible line or argument which could make the importation illegal would be if the compromised the existence, or contradicted jus cogens. These are fundamental rules of customary law that not even a treaty can contradict.
Therefore if it can be argued that the treaty has contradicted jus cogen, the general superiority of treaties is displaced. Article 53 of the Vienna Convention on the Law of Treaties 1969 states that; A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law
A treaty provision which conflicts with a rule of jus cogen is void and this is true whether or not the rule of jus cogens developed before or after the treaty cam into force (Art 64 VCLOT).
In the ICJ judgement it stated that the importation of these chemicals is ‘contrary to fundamental humanitarian considerations, reasons and equity’. It is clear that reasons and equity are not jus cogen as defined by the River Meuse case – Judge Hudson – ‘principles of equity have long been considered to constitute part of international law. Such principles, being general principles of fairness and justice, appear to be within the ambit of Art 38(1) ©. However certain humanitarian considerations could be deemed to be jus cogens and therefore would render the treaty and customary law void, if proved.
If however other States follow Utopia in refusing to allow importation then it seems that sufficient state practice contrary to the existing rule supported by opinion juris will develop new customary law in replace of the existing law. However much of this contrary state practice at least initially will be regarded as illegal. Therefore continued criticism of Utopia’s behaviour is clear evidence that no contrary customary rule will develop. If contrary behaviour has been accepted by the international community, a state which accepts the contrary behaviour will be taken to have forfeited the right to complain of the breach.
Nevertheless if the appear by the international community to be in breach of customary law, and the ICJ have jurisdiction it seems that even if they are taken before the court- the ICJ following its prior ruling might deem the behaviour acceptable and not illegal, although it has to be said the ICJ does not have a doctrine of precedent.
